To help our clients navigate the coronavirus (COVID-19) outbreak, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, March 30, 2020.
The Freedom of Information Law (FOIL), N.Y. Public Officers Law §§ 84-90, ensures government transparency by making most records open and available for public inspection. The law establishes deadlines within which public agencies must respond to FOIL requests and must ultimately grant or deny those requests.
Governor Cuomo’s Executive Orders make it clear that while during the present State of Emergency, public safety must be our first priority, but that local governments must strive, to the extent practicable, to remain open for business and provide essential services. However, under present circumstances, meeting requests for production and inspection of public records may not be practicable. What follows is guidance that takes a pragmatic approach to fulfilling government responsibilities during this time of mandatory staffing reductions and social distancing.
1. Does the declaration of a State of Emergency delay the time to respond to a FOIL request?
None of the Executive Orders issued by Governor Cuomo in response to the COVID-19 outbreak have authorized the relaxation of any of the provisions of FOIL, including the timelines to respond to a request.
2. Does the mandatory reduction in the workforce under Executive Order 202.4 allow a public agency/municipality to disregard a FOIL request?
Executive Order 202.4 mandates reduction in on-site public agency workforce to no more than 50% of staff so that governments can continue to perform their essential functions. As noted above, none of the Governor’s Executive Orders have relaxed the requirements to respond to a FOIL request. As such, local governments should continue to monitor FOIL requests and respond as appropriate. To the extent that non-essential staff can perform this function remotely from home by monitoring requests received via email, such options should be utilized.
3. Can a public agency/municipality deny a request to view the records in person?
If a local government office is closed to the general public in light of COVID-19 concerns, the public agency/municipality should endeavor to make other access options available, such as making records available via email or hard copy pick-up. For example, the public agency/municipality could consider transmitting a copy of the relevant records to the requestor, and waiving any associated postage fee. This approach could alleviate the need for the requestor to appear in person. If a requestor insists upon in-person review despite the availability of other access options, it would not be unreasonable to defer granting access until such time that the municipality/public agency reopens to the general public. The health and safety concerns that presently require social distancing should remain paramount. In short, the municipality/public agency must treat its FOIL obligations as an essential function and strive to be resourceful in terms of maintaining public access. It is perhaps inevitable that some requestors will experience delays. In the event that public access to records requires a longer than typical response time, the municipality/public agency should clearly communicate with the requestor as to the status of the request.
4. When must a public agency/municipality first respond to a FOIL request?
Within five (5) business days of receipt of a request for a record, the public agency/municipality must grant the request and make records available, deny the request or furnish a written acknowledgement indicating the approximate date when the request will be granted or denied.
If the request is one that can be easily granted or denied within five (5) business days, then do so, as usual. If not, send the written acknowledgement of the request.
5. In light of office closings and staff reduction, when is a FOIL request considered received by a public agency/ municipality?
Due to potential delay in processing and opening mail, it is possible that a request may be received, even date stamped, but not read and “received” by the record access officer who usually responds to the request. Good faith efforts must be made to respond within five (5) business days of the request being opened and date stamped received by the public agency/municipality. Staff, who may not typically have responsibility for opening and processing mail, should be advised to promptly forward FOIL requests to the records access officer. To the extent a request is not processed until more than five (5) business days after the postmark, it would be best practice to explain in the acknowledgment letter that due to the State of Emergency, there was delay in processing the request.
6. What is the timeline for completing the FOIL response once the acknowledgement is sent?
When such a written acknowledgement is sent, the request generally must be acted upon within twenty (20) business days from the date of the acknowledgement. However, if circumstances prevent disclosure of the requested record within that time period, the public agency/municipality must inform the requestor in writing of the reason for its inability to grant the request and provide a date certain, within a reasonable period, when the request will be granted in whole or in part.
If your records access officer is able to handle a FOIL request within the twenty (20) business day timeframe after the acknowledgement is sent, then the request should be fully acted upon.
7. What if staff is not available to timely respond to the FOIL request?
If the records access officer is not able to respond to a FOIL request within twenty (20) business days in light of present circumstances, then we advise informing the requestor that the request cannot be granted or denied within twenty (20) business days because of the ongoing public health emergency, and that the response will be provided within a reasonable time after all staff are able to return to work on site. Although this does not provide the required “date certain” as per the statutory language, it does provide the factual basis for the delay and avoids the need to send additional letters until after all employees return to work. We have attached a sample letter for this purpose. We caution that this approach should be taken only if the request cannot be responded to within the lawfully required timeframes due to the impact of COVID-19.
The alternative to this approach would be to inform the requestor that the records access officer requires twenty (20) business days to determine whether the FOIL request will be granted or denied, and, at the conclusion of that, and any subsequent, twenty (20) business day period/s, to send another letter, indicating that an additional twenty (20) business days will be required, until such time that the public agency/municipality is able to respond to the FOIL request.
8. Any other advice?
As with any matter, the best way to avoid complaints is to manage expectations. We recommend that a notice be posted on the public agency’s website explaining that due to the State of Emergency, there may be a delay in responding to FOIL requests. For example, the New York Power Authority has the following message on its website:
NOTICE: In light of New York State’s reduction in workforce as part of the ongoing response to the COVID-19 pandemic, there may be delays in response to FOIL requests. Thank you for your patience during this extraordinary time.
Similarly, the MTA has this notice:
Delays in response are possible. In light of the ongoing response to the COVID-19 pandemic, there may be delays in response to FOIL requests. Thank you for your patience during this extraordinary time.
If there are any developments on this topic, we will provide an update. Should you have any questions about FOIL, contact Nicholas M. Ward-Willis or Drew Victoria Gamils or any other attorney in our Public Law Sector Practice Group or William Kang or Suzanne E. Volpe or ay other attorney in our Education Law Practice Group.